It seems like the Department of Homeland Security (DHS) more precisely Immigration Custom Enforcement (ICE) Document and Benefit Fraud Task Forces is working very hard lately to identify and punish H1B employers and accomplices regarding H1B visa violations including H1B and PERM Labor Certification cases. Recently 24 companies were barred from filing H1B applications. It seems that the task force is now also focusing on the maintenance of good Labor Conditions Applications (LCA) and H1B amendments. If a company which is employing H1B workers is not properly maintaining the H1B visas or abusing the H1B employees, the Department of Labor is also getting involved. As such we have compiled some of the most common mistakes which IT consulting companies make in dealing with their cases.
Have an Actual location even if you are an IT consulting company.
1. Location It is a fact that many IT consulting companies operate from small units or even from home. Although those are genuine companies, and most of their candidates work off-site, the USCIS has been asking for more information on the locations. Those include but are not limited to pictures of the inside and outside of the buildings, the occupants of the buildings; the pictures of the interior with the desk and other working materials; site plan, and so on. Companies should know that the USCIS is looking whether it is a genuine business or just operating to defraud immigration to allow aliens to enter. Note that you will need to also comply with the LCA. Any new location for the candidate requires a new LCA and recently depending on the case an H1B amendment.
Possible Solution: Make sure that you are operating from an actual location that is not your house. Also make sure that the place have enough workstations to accommodate your candidate when they are not on site.
Ability to pay your employee
2. Inability to pay When any new H1B petition is filed, the Employer must prove that the employer should be able to pay the employee. This applies even if the employee is on the bench.
Possible Solution: Make sure that the company has enough money in the bank or as asset to pay the employee. Alternatively show that there are end clients to provide work for such and employee. The end client letter or the purchase orders should show that there will actually be income to pay the employees.
You need to pay your H1B employee even when you are benching them.
3. There is a misconception that if the employee is on the “bench”, this employee does not have to be paid. This is a clear violation of the terms of employment. Make sure that they are being paid the amount stated on the LCA. If you do not have a project or do not want to pay, you need to terminate the H1B employee. Also you should comply with all the rules on the I9 forms.
Update and Keep a good website for your company
4. Have good Website, brochures and flyers to prove the genuineness of your business. Although most IT companies do have a website, they do not always have brochures and flyers to show that the business is genuine. If your business is only to assist immigrant to come to the US, you should stop. Solution: A good website, brochures, publications, and so on.
Inform the USCIS if you lay off an employee.
5. Always inform the USCIS if an H1B employee is leaving. Many IT consulting firms by negligence fail to inform the USCIS that the beneficiary of the H1B is leaving your company. Failure to do so might result in very dire consequences for your company. Solution: Correspond with the USCIS frequently.
Contact a reliable immigration lawyer before you make any decision
6. Refer to an experienced immigration attorney when you are not sure about something. It is common that many IT consulting companies will process their own H1Bs mainly because of cost. Worse, they will use a non lawyer to work on the case. This is not recommended because the forms involved require a lot of attention to details and the new G 28 forms requires that the person filling the form disclose his or her identity. A single mistake can cost someone more than hiring a regular law firm to assist in the procedure. Note that you stay away from Immigration Consultants. They are not licensed and are not allowed to give any legal opinion or even fill any forms. Also if you cannot communicate with your attorney, you should think of changing the attorney.
Solution: Hire a real attorney (licensed) before moving forward on any case.
Maintain good accounting and public access files
7. Maintain good accounting including all H1B receipts and Public Access file: It is sometimes hard when you have many consultants on your list to maintain a record of each. However, it is imperative to maintain such a list. Very often the USCIS will require to keep the records of all the approval notices. You should also keep a good record of all the wages paid to the employees.
Solution: Have a good accountant and a staff dedicated to maintaining all your records competently.
Our office has successfully processed many H1B cases, H1B transfers and amendment cases, and we are regarded as one of the most reliable law firms in the Bay Area, and we will be more than glad to help. Should you have any questions, feel free to contact us on 510 742 5887